A Primer on Juvenile Protective Legislation

• Published date: 01 June 2014
• Date: 01 June 2014
• Author: Douglas E. Abrams
• DOI: http://doi.org/10.1111/jfcj.12020

A Primer on Juvenile Protective Legislation

By Douglas E. Abrams

ABSTRACT

The parens patriae doctrine is grounded in the proposition that children some-

times need the law’s protection from their own improvidence or immaturity, and

sometimes even from the conduct of their parents or other caretakers. Parens patriae

underlies much state and federal regulation in such areas as abuse, neglect, foster care,

adoption, medical decisionmaking, support, and delinquency. The doctrine also

underlies the wide range of protective legislation that regulates children’s conduct,

the subject of this article.

ARTICLE

This Journal’s readers are doubtlessly familiar with the parens patriae doctrine, which

is grounded in the proposition that children sometimes need the law’s protection from

their own improvidence or immaturity, and sometimes even from the conduct of their

parents or other caretakers. Parens patriae underlies much federal and state regulation in

such areas as abuse, neglect, foster care, adoption, medical decisionmaking, support and

delinquency. The doctrine also underlies the wide range of protective state and federal

legislation that regulates children’s conduct, the subject of this article.

Juvenile protective legislation began in earnest with enactment of state child labor

laws during the latter part of the nineteenth century before spreading to other areas of our

national life. Regulation generally operates until the general age of majority, though

some statutes end protection earlier or extend it longer. Contentions that the line drawn

creates unlawful age discrimination regularly fail because age classifications are not

Douglas E. Abrams, J.D., is a law professor at the University of Missouri. Correspondence:

abramsD@missouri.edu.

Editor’s Note: This article is adapted from Chapter 9 of Children and the Law in a Nutshell, by Sarah

H. Ramsey and Douglas E. Abrams (4th ed. 2011; 5th ed. with Susan V. Mangold forthcoming 2015),

published by West Academic Publishing. To purchase a copy, visit store.westacademic.com. If you are a

professor considering this text for adoption and would like to receive a complimentary copy, call 1-800-

313-9378 or email accountmanager@westacademic.com. Reprinted by permission.

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Juvenile and Family Court Journal 65, No. 3-4 (Summer/Fall) 1

© 2014 National Council of Juvenile and Family Court Judges

suspect, implicate no fundamental right, and thus need satisfy only rational basis scrutiny

under settled constitutional law. See, e.g.,Kimel v. Florida Board of Regents, 528 U.S. 62

(2000).

I. CHILD LABOR LAWS

1. Introduction

The Sources of Regulation

“Limitations have emerged on the prerogatives of parents to act contrary to the best

interests of the child with respect to matters such as . . . child labor.” Hodgson v. Minnesota,

497 U.S. 417 (1990). Child labor is regulated by state, federal, and municipal legislation,

each typically refined by administrative rules and regulations. Every state has a child

labor law which tend to follow a common pattern because many are modeled on the

Uniform Child Labor Law, which the Uniform Law Commissioners first proposed in

1911. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., is the major

federal regulatory statute. Many local ordinances also regulate work by children. Because

the FLSA imposes no federal preemption, a covered person is subject to the strictest

standard—federal, state or local—in a particular case.

Child labor regulation can be confusing because the meaning of broad statutory

and administrative provisions may be unclear when applied to particular facts. Also

some state restrictions are found outside the child labor law. Alcohol beverage

control laws, for example, may prohibit or regulate employment of children in estab-

lishments where beer or liquor is sold or consumed. Other statutes may restrict or

prohibit employers from hiring children to work in such places as gambling estab-

lishments or pool halls, or to manufacture or sell such products as explosives, fireworks

or firearms.

Courts have rejected various challenges to state and local child labor legislation

under state constitutions. In Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme

Court rejected a federal constitutional challenge to the states’ general police power to

enact child labor legislation. The Supreme Court has viewed child labor regulation as a

quintessential exercise of the police power ever since. See, e.g., DeCanas v. Bica, 424 U.S.

351 (1976). The constitutionality of federal child labor regulation was assured when the

Supreme Court unanimously upheld the FLSA in United States v. Darby, 312 U.S. 100

(1941).

Agricultural Employment

Initially child labor legislation sought to protect children primarily from work in

the factories, sweatshops, and mills that began dotting the urban landscape with the

advent of industrialism. Today, however, children are more likely to be injured by work

on commercial farms.

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